University of Pennsylvania
Law Review
FOUNDED 1852
Formerly
American Law Register
VoL. 107
MAY,
1959
No. 7
THE TREATY MAKERS AND THE LAW MAKERS:
THE LAW OF THE LAND AND FOREIGN
RELATIONS
Lores HMNxIN f
It has long been assuned by all-4ncluding both sides i; the recent Bricker
Amendment controversy-that the treaty power reaches considerably further
than the power of Congress acting without a treaty. This assumption was
explicit in the famous case of Missouri v. Holland. The author, for ten years
a mnember of the Departnent of State and author of the recently published
book, Arms Control and Inspection in American Law, here conpares the scope
of powers currently entrusted to the treaty nmakers and the law nakers, finds
that the powers of Congress are far wider than believed, and suggests for
consideration that the same factbrs which render a imatter proper subject for
a treaty may also render it appropriatefor independent Congressional legislation under the federal foreign affairs power.
The recent attempts led by former Senator Bricker of Ohio to
amend the Constitution in respects relating to treaties and other
international agreements achieved perhaps the most extended debate in
the history of the nation upon the several issues involved. Even those
who believe that these efforts were unfortunate, and that their success
might have proved disastrous, may yet admit that the controversy
afforded some worthy results. The zeal, the zealotry even, of scholars
increaseth wisdom. But inevitably, the views expressed and the positions assumed reflected the exigencies of a determined controversy.
t Professor of Law, University of Pennsylvania.
LL.B., 1940, Harvard Law School.
(903)
A.B., 1937, Yeshiva College;
904
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
Now, hopefully, the battle is done. It is perhaps then not too soon to
look around at where we are left on basic constitutional issues, to seek
understanding as to why the conflict raged as and where it did, to
examine assumptions articulated or withheld, and to give second
thought to some views declared, some positions taken.
In this Article we would examine some premises about the powers
of Congress and the treaty makers to enact law in the United States.
These assumptions, underlying the Bricker controversy, were expressed
by the Supreme Court of the United States in 1920 in Missouri v.
Holland.' As is now famous, the Court, in an opinion by Mr. Justice
Holmes, accepting arguendo that in the absence of treaty Congress had
no power to regulate migratory birds,2 held that a treaty with Canada
gave Congress the power to adopt a statute dealing with the birds as
"necessary and proper" for carrying that treaty into execution.3 The
assumption that Congress itself lacked power to regulate the birds was
not discussed. Neither was the related observation: "It is obvious
that there may be matters of the sharpest exigency for the national well
being that an act of Congress could not deal with but that a treaty
followed by such an act could." 4
1. 252 U.S. 416 (1920).
2. Holmes' assumption may have been based on previous lower court decisions.
See note 24 infra.
3. Congress, its own powers apart, can "make all Laws which shall be necessary
and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer
thereof."
U.S. CoxsT. art. I, § 8.
4. 252 U.S. at 433.
Supporters of the "Bricker Amendments" made Justice Holmes' treaty power
assumption their own and, adopting a proposal originating in a committee of the
American Bar Association, sought to "repeal" Missouri v. Holland so that nothing
could be made law by or pursuant to treaty which Congress could not have enacted
without treaty. Opponents, adopting the same assumption, resisted the Bricker effort
in order to preserve the power of the United States to do by treaty what Congress
could not do. And, to preserve the treaty power unimpaired, they found themselves
arguing that the legislative powers of Congress, as to matters covered by treaty,
were limited. If, as the amendments would have it, a treaty could do no more than
Congress could do without a treaty, many of the traditional treaties of the United
States could not take effect, because Congress did not itself have power to deal with
those matters. The Bricker group, in rebuttal, insisted that the standard treaties
would not be affected since Congress did have the power to regulate those areas.
The amendments would only prevent the "new" treaties dealing with matters essentially "domestic" in character. See text following notes 13, 46 infra. See also note
16 infra and accompanying text. It is one of the ironies of the Bricker controversy
that opponents of the amendments, generally "nationalist" vis-A-vis the States,
"internationalist" in their orientation on United States foreign policy, found themselves arguing that the powers of Congress were limited in matters relating to the
foreign affairs of the United States. The Bricker group, on the other hand, including
many "States-righters" and "isolationists," argued that Congress had extensive powers
in this area. Compare Whitton and Fowler, Bricker Amendent-Fallacies and
Dangers, 48 Am. J. INT'L L. 23, 39 (1954), with Finch, The Need to Restrain. the
Treaty-Making Power of the United States Within Constitutional Limits, 48 Ax.
J. IiT'L L. 57, 72 (1954). See also numerous arguments on both sides in Hearings
on S.$. Res. 130 Before a Subcommittee of the Senate Committee on the Judiciary,
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
905
That the relevant powers of Congress do not reach as far as those
of the treaty makers was a hypothesis that had little importance in
Missouri v. Holland, but it has significance for an appreciation of
constitutional powers of the national government. Immediately, of
course, it appears to deny to Congress the power to deal with at least
some matters of "exigency for the national well being." To the treaty
power, by comparison, it lends an exaggerated appearance which has
invited attack culminating in the Bricker episode. And to see the
powers of Congress small while the treaty power looms large gives a
distorted appearance to the configuration of federal authority established
by the Constitution for dealing with matters which are of concern to
the United States in its relation with other nations.
We shall explore first the scope of the treaty power, then compare
the reach of related powers of Congress. We shall suggest that whatever the validity of Mr. Justice Holmes' assumptions when he expressed
them, they may today be unwarranted; that, in the light of constitutional developments since 1920, the internal effect of any provision
of any treaty of the United States could in fact be enacted by Congress
without a treaty. Indeed, we shall offer for consideration the suggestion that those factors related to the international relations of the
United States which render a matter proper subject for a treaty also
render it appropriate for legislation by Congress under its own powers.
If this be so, the treaty power and the legislative power of Congress
appear as congruent and correlative powers of the federal government
to enact law in the United States on matters of concern to the nation in
its international affairs.
f
To examine how the powers of Congress in international matters
compare to the treaty power, we consider first the nature and scope of
the treaty power.' Article II, section 2, of the Constitution provides
that the President "shall have power by and with the Advice and
82d Cong., 2d Sess. 121, 132, 256, 313-16, 364, 413, 484, 486, 530 (1952); Hearings
on S.. Res. 1 & 43 Before a Subcommittee of the Senate Committee o= the Judiciary,
83d Cong., 1st Sess. 924, 959, 994, 999, 1010, 1070, 1123, 1130, 1136 (1953) ; Hearings
o S.J. Res. 1 Before a Subcommittee of the Senate Cominttee on the Judiciary, 84th
Cong., 1st Sess. 185-86, 281-82, 297, 581-82 (1955).
For a brief discussion of how the thesis of this article relates to the Bricker
controversy, see notes 65-68 infra and accompanying text.
5. The Bricker Amendment hearings, supra note 4, are full of learning about
treaties. I too have had other occasion to deal with basic constitutional doctrine about
treaties, recently and at length. For convenience and brevity, I shall refer to HE-NI,
ARms CONTROL AND INsPECrlON Ix AmERICAN LAW (1958) (hereinafter cited as
Aixs CONTROL), and to an article, Henkin, The Treaty Makers and the Law
Makers: The Niagara Power Reservation, 56 CoLum. L. Ray. 1151 (1956) (hereinafter cited as Niagara Power). On the introductory matters asserted here without
citation see Aamus CONTROL 27-34, 168-77; see also Niagara Power 1169-72.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
Consent of the Senate, to make Treaties, providing two thirds of the
Senators present concur." 6 And the supremacy clause of article VI
adds: "This Constitution, and the Laws of the United States made in
pursuance thereof; and all Treaties made, or which shall be made,
under the authority of the United States, shall be the supreme Law
of the Land .
.
."
These clauses, the Supreme Court has explained,
mean that for the United States a treaty has a two-fold effect. It is
an international agreement of the United States and, to the extent that
it is intended to have domestic effects and consequences, the treaty is
also a law of the United States, as much so as an act of Congress. A
treaty properly ratified is valid and binding as law in the United States
regardless of any inconsistent provision in an earlier act of Congress;
for domestic purposes, a subsequent congressional enactment can
nullify a treaty provision. But as to what a treaty is, and what is
proper subject for a treaty--questions which may appear preliminary
and fundamental-the Constitution has no answers. Indeed the
questions were not asked. Perhaps no questions existed.7 Those who
framed the Constitution knew a treaty when they talked of it, or wrote
of it. Treaties, agreements between nations, had long been known.
Sovereigns negotiated about matters which concerned them. Sometimes they reached agreement. When they did, they concluded a treaty.
It was not imagined that there were matters which concerned nations
as to which they could not make treaties. It was not conceived that two
nations might conclude treaties as to matters which did not concern
them.' For the United States, too, what was the proper subject of a
6. It is generally assumed that the provision in article IIestablished the authority
of the United States Government to make treaties. This is not a necessary view of
the Constitution and of article II. "It results," said Mr. Justice Sutherland, "that
the investment of the federal government with the powers of external sovereignty
did not depend upon the affirmative grants of the Constitution. The powers to declare
and wage war, to conclude peace, to make treaties, to maintain diplomatic relations
with other sovereignties, if they had never been mentioned in the Constitution, would
have vested in the federal government as necessary concomitants of nationality."
Referring to similar powers which the Court had found to be inherent in nationality,
Sutherland added that the Court "in each of the cases cited found the warrant for
its conclusions not in the provisions of the Constitution, but in the law of nations."
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), discussed
in text accompanying note 36 infra. The fact that the treaty power is mentioned does
not compel a different view. Article II deals with the powers of the President. The
treaty provision of that article merely indicates in which of the separated branches
of the federal government the implied, sovereign power of the United States to make
treaties is lodged. For our examination of the nature and scope of the treaty power
it does not matter whether we consider that article II lodges in the President and
Senate an implied power of the United States, or whether the treaty power is
expressly established by article II.
7. The only question was who should have the power to make treaties for the
United States. That the Founders dealt with. See note 6 supra.
8. Compare NiagaraPower, especially at 1164-69, with Power Authority v. FPC,
247 F2d 538 (D.C. Cir. 1957), vacated and renmanded with directions to dinmnis as
moot, 355 U.S. 64 (1958).
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
907
treaty did not seem to beg for definition. Later, Mr. Justice Field
stated simply: "That the treaty power of the United States extends to
all proper subjects of negotiation between our government and the
government of other nations is clear.
[It] is not perceived that
there is any limit to the questions which can be adjusted touching any
matter which is properly the subject of negotiation with a foreign
country." I
This appears to be all the relevant learning, in the Constitution or
in the cases. A treaty is an international agreement on a matter of
international concern. It may not deal with a matter which is not of
international concern; there is no matter which is of international concern with which it may not deal. Yet, to many, the latter proposition
has been difficult to comprehend and to accept. In particular, the States,
and champions of the States, argued that the treaty power extends only
to matters within the enumerated powers of the federal government
under the Constitution; and that the United States, therefore, cannot
9. Geofroy v. Riggs, 133 U.S. 258, 266-67 (1890). Mr. Justice Field also said:
"The treaty power, as expressed in the Constitution, is in terms unlimited except by
those restraints which are found in that instrument . . . [or which may be implied
in it]." Ibid. See also Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) ; Asakura v.
Seattle, 265 U.S. 332, 341 (1924) ; Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872).
There is also a well-known statement by Charles Evans Hughes, before he became
Chief Justice: "The power is to deal with foreign nations with regard to matters of
international concern. It is not a power intended to be exercised, it may be assumed,
with respect to matters that have no relation to international concerns. . . . So I
come back to the suggestion I made at the start, that this is a sovereign nation; from
my point of view the nation has the power to make any agreement whatever in a
constitutional manner that relates to the conduct of our international relations, unless
there can be found some express prohibition in the Constitution, and I am not aware
of any which would in any way detract from the power as I have defined it in connection with our relations with other governments. But if we attempted to use the
treaty-making power to deal with matters which did not pertain to our external
relations but to control matters which normally and appropriately were within the
local jurisdictions of the States, then I again say there might be ground for implying
a limitation upon the treaty-making power that it is intended for the purpose of having
treaties made relating to foreign affairs and not to make laws for the people of the
United States in their internal concerns through the exercise of the asserted treatymaking power."
1929 Am. Soc'Y INeT'L L. PRocEEINGS 194, 195-96 (1929).
Other
statements may support the "international concern" requirement. Jefferson in his
MANuAL OF PARI.A ENTARY PRACTicE § LII; Madison addressing the Virginia
Convention, 3 ELO'r, DEBATES ON THE FamnzA CoNsrrr=MoN 514 (2d ed. 1901);
Secretary of State Root, 1 Am. J.INT'L L. 273, 279 (1907).
It is not clear whether as a matter of international law a treaty to be binding
must deal with a question of "international concern." One may argue that, even in
time of peace, nations may enter into any agreement whatever, and "no international
concern" would not be recognized as rendering the treaty unenforceable in an international tribunal. If "international concern" is not an international requirement for
a treaty, one may ask whether it should be a requirement for a constitutional exercise
of the treaty power. As seen, however, it has been assumed-perhaps too lightlythat such a requirement in fact governs the treaty power, although the reasons for this
assumption were not examined, and no issue arose to test the assumption or produce
a considered discussion of it. Perhaps those who made the assumption thought "international concern" to be an international requirement as well; or perhaps they considered it an additional implied safeguard against abuse of the treaty power. In any
event, for this article I adopt that assumption as unquestioned. Whether, assuming
that "international concern" is a constitutional requirement, it is one enforceable in
the courts, see note 63 infra.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
deal by treaty with matters "otherwise left to the States." "o One might
show, in refutation, that treaties have in fact dealt with matters which
apart from the treaty would be regulated by the States, as early as the
earliest treaties of 'the nation, as late as its latest treaty of friendship,
commerce, and navigation. Objections to such provisions have received
repeated, consistent and unambiguous blows from the Supreme Court,
culminating in the coup de grace in Missouri v. Holland. Yet the
doubts recurred, at times even among representatives of the United
States engaged in the negotiation of treaties.1
The reasons why may be several, and of several kinds. Here we
would suggest, as a principal explanation, that the treaty power has
lent itself to misunderstanding and to misinterpretation, even by its
friends. In its view of the scope of that power, Missouri v. Holland
hardly represents-as has sometimes been made to appear--doctrine
sprung full-blown from the mind of Mr. Justice Holmes in 1920. But
in the ruling that there could be federal regulation by and pursuant to
a treaty when, as Justice Holmes assumed, there could not be regulation
by Congress, champions of States rights saw only that federal jurisdiction became broader as a result of an international agreement. Accustomed to measure the federal domain by the reach of congressional
power, they met in the treaty power an assertion of federal authority
which reached further. Naturally, they recalled and invoked the tenth
amendment; and they appeared to assume that those who approved such
treaties in the face of the tenth amendment were either violating the
Constitution or were asserting that treaties are not subject to constitutional limitations.' 2
And it was not principle alone, not merely the desire to adhere to
constitutional doctrine as they saw it, which motivated them. For to
them this asserted treaty power appeared highly dangerous, virtually
without limit. The United States could make a treaty with any nation
on any subject; that took that area out from under local, state authority
and made it a federal concern. Nor was this danger wholly imaginary.
The character of treaties has changed, their contents radically extended.
Once treaties which had domestic effect dealt with the rights of aliens,
10. This was essentially the argument rejected in Missouri v. Holland. See 252
U.S. at 417-24.
11. See, for example, authorities cited in Alms CONTROL 176-77 n.25; see also
the reference to "federal-state" clauses, note 66 in!ra.
12. While Mr. Justice Holmes disposed of this mistaken reference to the tenth
amendment, he was partly responsible for the legend that treaties are not subject to
any constitutional limitations. Though much discussed during the Bricker debates,
this view was denied by both sides, and very little support for it could be found
anywhere. The ambiguous suggestion by Air. Justice Holmes based on his reading
of the supremacy clause has been rejected. This is considered and the authorities
collected in ARus CONTROL 29, 169-71.
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
909
of nationals of the other party to the treaty. The traditional treaty of
friendship, commerce and navigation is still of that character, even when
it deals with such "local" matters as the right of foreign nationals to
inherit land, or to run a pawn shop."3 Now, however, nations also
negotiate what are basically "uniform -international laws" on national
matters: agreements establishing minimum labor .standards in their
own countries; fixing "human rights" for their own citizens; defining
crimes for their own subjects in their own territory. These are areas,
the champions of States rights would argue, left to the States by the
Constitution. Congress could not deal with them. But a treaty can
come along, take them out of state control, put them into the federal
domain.
It is some such view of treaties and the treaty power, of "federal
jurisdiction" and of the powers of Congress, I believe, that underlies
attacks on the treaty power. But to look at the treaty power in this
way is misleading. The argument may be focused differently. Indeed,
one may reverse it. The subject of a treaty must be of international
concern. And because the matter is of international concern one may
say that it is, ever, in the federal domain and might become the subject
of a treaty. If, before a treaty, it is left to the States, it is only
"defeasibly" so, subject at any time to the assertion of the federal
interest by treaty, just as in some other areas of federal power the
States may act in the absence of federal regulation. Any matter, then,
which is or becomes of international concern is "lifted" into the federal
domain when a treaty is negotiated about it only in -thesame sense that
any object or activity is "lifted" when Congress taxes it and regulates
it to protect the revenue; or when Congress exercises its commerce
power in an area previously left to the States; or when, having declared
war, Congress makes the lives, and actions, and the most "local" interests of any citizen of any State subject to federal regulation because
they are of "war concern." This is what Justice Holmes was saying,
more succinctly, in Missouri v. Holland. Holmes assumed in that case
that migratory birds were not subject to congressional regulation apart
from the treaty; he did not assume that they were without the federal
domain. Indeed, -thepoint of the case is that migratory birds, being of
international concern, were in the federal domain and subject to the
exercise of federal jurisdiction. It is no matter that-on Holmes'
assumption-the federal jurisdiction to which they were subject was an
exercise not of congressional power but of the treaty power. It was
13. See Asakura v. Seattle, 265 U.S. 332 (1924); Hauenstein v. Lynham, 100
U.S. 483 (1879).
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
because they were subject to such federal jurisdiction that, said Holmes,
they were not "reserved" to the States by the tenth amendment.
This way of looking at the treaty power does not, I believe, reflect
distinctions which are merely conceptualistic. It is not rationalization
of federal usurpation of state authority. There is no usurpation, for it
was ever intended that the federal government have this power to deal
by treaty with any matter of international concern. It is as though the
Constitution expressly provided: "all matters which are of concern to
the Nation in its international relations might be the subject of treaties
with other nations." Federal authority over international matters,
then, is an independent power; there is no requirement that the subject
matter of a treaty be of federal concern on some additional basis, under
some other federal power as well. Nor is the treaty power limited to
those particular international concerns-say foreign commerce-which
the Constitution expressly lodged in other departments of the federal
government.14
Precisely what is of "international concern," what is inherently
in the federal domain and as such can become the subject of a treaty,
cannot, of course, be defined or enumerated. If it is not definite, certainly it is not static in the changing character of relations between
nations. Nor has it ever been established that a nation's proper
concern-that with which it may deal in a treaty-is limited to what
is immediately and directly "transnational" in character. Traditionally,
it is true, American treaties have in largest part dealt with the rights of
other countries or of nationals of other countries in the United States,
of the United States and of American citizens in other countries. In
exchange for similar privileges abroad, treaties have fixed tariffs and
duties, accorded commercial and civil rights to nationals of other
countries, given them exemptions from taxes, from conscription, from
various kinds of local obligations. Many of the provisions of these
treaties have domestic effect and become laws of the United States.
Traditionally, too, matters which immediately concern the relations
between the United States and its own citizens were not dealt with by
international agreement. How a nation dealt with its own was, usually,
not a concern of other nafions; it was not therefore fit subject for a
treaty; it was not-for the United States--dealt with under the treaty
power. But it was never accepted, or suggested, or assumed, that
matters which were immediately and prima facie "domestic" could not
be of concern to other nations, could not be dealt with by treaty. Rather
14. At one time the treaty power had to face a contrary argument, that treaties
could not effectively deal with matters entrusted by the Constitution to Congress.
See the discussion and citations in WRIGHT, THE CONTROL OF Am RICAx FORIIGN
RuATIos 102-03 (1922).
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
911
it has always been clear that international agreements, like private
contracts, may be parallel as well as reciprocal. Parties may bind
themselves to do, or not to do, for each other; a nation may also undertake to do or not to do, in its own land and to its own people, in consideration of a similar undertaking by the other party. And when nations
became sufficiently concerned to wish to bargain about these "internal"
matters treaties resulted.' 5
Such agreements are not entirely recent phenomena-the "new"
treaties which have become the subject of controversy and which the
United States has resisted."8 In fact, the United States, like other
nations, has itself negotiated treaties and other international agreements
which regulate acts of the Government in regard to its own citizens.
The United States adhered to some of the ILO Conventions establishing labor standards which this country would apply to AmericansY
It agreed to control raw and manufactured opium and other drugs
within the United States.' 8 It agreed to apply to its own vessels
15. Even in matters which earlier might have seemed entirely "domestic." After
World War I nations recognized, for instance, that labor conditions in one country
affected conditions, wages and prices in other countries, and were related to imports,
exports, duties, and to foreign trade generally. Governments accepted, therefore,
that labor conditions in one country were a proper concern of other nations and,
under the aegis of the International Labor Organization, conventions setting minimum standards were negotiated as treaties. Before and between World Wars nations
came to see that a nation's treatment of its own citizens and subjects may intimately,
and sharply, affect international peace. Treaties ending the First World War contained undertakings by defeated countries in regard to minority groups in their own
countries. After World War II, peace treaties with several countries included provisions requiring observance of human rights for their own citizens as well. The
United Nations Charter, a treaty to which more than eighty nations are now party,
established an organization whose purpose, inter alia, is "to achieve international
cooperation . . . in promoting and encouraging respect for human rights." U.N.
CHARTxR art 1, para. 3. And members pledged themselves "to take joint and separate
action in cooperation with" the United Nations for the achievement of the purpose
of the Organization to promote "universal respect for, and observance of, human
rights and fundamental freedoms," "with a view to the creation of conditions of
stability and well-being which are necessary for peaceful and friendly relations among
nations." Id. at arts. 55(c), 56. For a discussion of different "concerns" negotiating
nations might have, compare Niagara Power 1164:-69.
16. Particularly, the Genocide Convention, which the United States has signed
but not ratified, Exec. 0, 81st Cong., Ist Sess., 95 CoNG. REc. 7825 (1949), and the
draft Covenant on Human Rights, on which extensive negotiations continued for
several years. American officials have since stated that the United States would not
adhere to such a covenant. That the United States has power, under the Constitution,
to adhere if it chose, see Chafee, Soome Problems of the Draft International Covenant
on Hiuma Rights, 95 Paoc. Ams. Pxrr. Soc'Y 471 (1951). During the Bricker debates
there was also attack on the ILO Conventions.
17. E.g., the conventions relating to masters and seamen, Conventions With
Members of the International Labor Organization, Oct. 24, 1936, 54 Stat. 1683, 1693,
1705, T.S. Nos. 950, 951, 952. For a chart indicating the accessions of members to
the various ILO conventions, see Hearings (1955), supra note 4, facing 1). 768.
18. See International Opium Convention, Jan. 23, 1912, 38 Stat. 1912, T.S. No.
612, and Convention for Limiting the Manufacture and Regulating the Distribution
of Narcotic Drugs, July 13, 1931, 48 Stat. 1543, T.S. No. 863, implemented by the
Opium Poppy Control Act, 56 Stat. 1045 (1942), 21 U.S.C. § 188 (1952) ; see Stutz
v. Bureau of Narcotics, 56 F. Supp. 810 (D. Cal. 1944).
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
accepted load lines and common standards for safety at sea.1' It agreed
not to bring to trial an American soldier if he has been tried for the
same offense by the courts of an allied NATO country.
It agreed
2
1
with other nations to limit its taxes on American citizens.
And the
United States has agreed to limit its own armaments; it continues to
strive for far-reaching controls on arms and armies which would impose
strict limitations on activities by Americans within the United States;
it sought, for years, agreement for the control of atomic energy which
would have governed strictly many domestic activities by Americans
in the United States. 22 These agreements, it should be clear, are not
19. International Load Line Convention, July 5, 1930, 47 Stat 2228, T.S. No. 858;
International Convention and Regulation for Promoting Safety of Life at Sea, June
10, 1948 [1952] 3 U.S.T. & O.I.A. 3450, T.I.A.S. No. 2495, replacing the Convention
of May 31, 1929, 50 Stat. 1121, T.S. No. 910.
20. See NATO Status of Forces Agreement, June 19, 1951, art. VII, para. 8
[19531 2 U.S.T. & O.I.A. 1792, T.I.AS. No. 2846. Although tis provision was
probably intended primarily to protect a soldier against a second trial by a different
country, its terms apply also to bar his own government. That this is a proper
reading is indicated by the final sentence which reserves to the soldier's own military
authority the right to try him for any violation of "rules of discipline' arising from
an act for which he was tried by another country. The implication is that he can
be given additional disciplinary but not criminal punishment. Cf. United States v.
Sinigar, 6 U.S.C.M.A. 330, 337, 20 C.M.R. 46 (1955). The United States has also
agreed to confer limited immunities and privileges upon international officials, including those who are United States citizens. See Ares CONTROL 211, 213-14.
21. Double taxation treaties of the United States include provisions the effect of
which is that the United States agrees not to tax American citizens, or undertakes
to give them a credit for taxes paid to another country. See, e.g., Convention With
France About Double Taxation and Fiscal Assistance, Oct. 18, 1946, Supplementary
Protocol, May 17, 1948, art. 5, 64 Stat B3, T.I.A.S. No. 1982. And recently the
United States has signed an agreement with Pakistan under which the United States
would give tax "credits" to United States investors in Pakistan although Pakistan
will not exact a tax. This provision ran into opposition, and, when the Pakistan law
waiving taxes expired, the Senate entered a reservation to this provision in its consent to the ratification of the Convention, July 9, 1958.
22. See Aius CONTROL 4-9, 104, 161-62 n.5. Parallel disarmament obligations
were undertaken by the United States as early as the Rush-Bagot agreement in
1817. Id. at 159 n.3, 187-88 rn7.
A very different instance where governments adopted parallel undertakings within
their own territory is the Convention on Nature Protection and Wildlife Preservation
in the Western Hemisphere, Oct. 12, 1940, 56 Stat. 1354, T.S. No. 981. For instances
where United States treaties contained provision designed basically for domestic
"effect" only, see Niagara Power 1166-69, 1174-75.
It may be argued that the treaties cited in the text are proper subjects for treaty
because, although they involve the regulation of domestic activities of local citizens,
the matters regulated are directly and essentially "international" in character, e.g.,
the state of a nation's armaments, or the shipping practices which enable it to compete
in international maritime activity and trade. Cf. 40 Ops. Ai'VY GEN. 119 (1941).
But the extent and character of "international concern" is, of course, a matter of
perspective and degree. And in regard to the conventions under discussion recently,
it should be obvious that, for example, far more important for United States foreign
trade than any shipping restrictions, and of far greater international concern to this
country, would be an international convention fixing high labor standards, if it were
adopted by the nations with whom the United States competes to sell manufactured
goods in the world markets. To recognize that even "human rights" and "genocide!'
may be matters of authentic international concern, one need only think of recent
events in Communist countries. India and Pakistan, Cyprus and other actual or
potential situations where the treatment of individuals or minority groups, even if
19591
THE LAW OF THE LAND AND FOREIGN RELATIONS
913
subterfuges by the United States Government to make law in the
United States through the treaty power. The United States is primarily
concerned to see standards observed in other countries insofar as they
may affect this country. To achieve that, and to give the United States
the right to request compliance with those standards, the United States
is prepared to pay the price of undertaking to apply similar standards
in the United States and to recognize the right of other nations to
request American compliance.
It is not the purpose here to argue in favor of any particular international agreement, arrangement, organization. The purpose is to
make clear that matters of 'international concern" to the nation are
and have been in the national domain. And like the commerce power,
which we shall discuss below in a related context, like other constitutional concepts which have grown and developed because they are
principles in a Constitution-because they were written not for 1787 but
for generations unknown and unnumbered-what is of "international
concern" today must also be sought in the light of the nations and the
concerns of today. The Fathers did not define the treaty power, not
even in terms of "international concern"; they merely asserted the
treaty power, asserting that the United States would and should be able
to negotiate treaties about matters as to which the United States and
other nations found it in their interest to agree. That nations are
concerned, negotiate and agree is the best test-is there any other?of what is a matter of "international concern," of what is a proper
subject for a treaty, of what-for the United States-is within the
treaty power.
H
In the previous section we stressed the importance of looking at
the treaty power as a federal power established by the Constitution to
deal with matters of concern to the nation in its international affairs. A
treaty does not usurp local, state functions and expropriate them to the
federal domain; rather, the national government has authority over
matters of "international concern" which it can exercise through the
treaty power. Now we would consider the extent to which the national
government may deal with the same matters of "international concern"
local citizens, is intimately related to war and peace among nations. The question is
not basically whether the United States wishes to submit actions in the United States
to the scrutiny of other nations; the question is whether the United States, concerned
for the treatment of individuals and groups in other countries and its effect on war
and peace, may wish to help regulate such treatment there, and thinks it worth the
necessary price-agreement to subject some domestic actions in this country to similar
international or foreign scrutiny.
914
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
through the legislative powers of Congress. Because our entire inquiry
originates with the assumption that the powers of Congress in this
area are less than the treaty power, it seems desirable to put the question
relatively: How much of the area which is within the treaty power is
also subject to the powers of Congress? Are there today, as Holmes
assumed in 1920, matters of "international concern" which a treaty
can "regulate" but Congress cannot?
Confidently, one may conclude that the common provisions of
traditional treaties which apply as law in the United States are within
accepted powers of Congress to legislate. Take the most significant
category of treaties, the treaties of friendship, commerce and navigation.
For our purposes, these treaties, in exchange for reciprocal treatment
to the United States and to Americans abroad, accord to the foreign
country and to its nationals rights and privileges in the United States.
The laws which such treaties establish confer rights relating to international trade and customs, shipping, the entry or transit of goods, the
entry of capital and the conduct of business in the United States, taxation, the entry and sojourn of aliens, their status and personal rights,
their right to hold and enjoy property.2 3 Other treaties which apply as
law in the United States deal with taxes, or tariffs, or international
trade in other aspects, or the rights of allied soldiers. Early peace
treaties of the United States dealt with international claims. One need
only run down the list of the enumerated powers of Congress to see
how amply they cover these subjects. Virtually every power of Congress can be invoked in some field where the United States has acted
by treaty. Some of these well recognized powers are broad enough to
cover many treaties, e.g., the power to lay taxes and duties, the congeries
of powers now called the "war powers," the power to regulate commerce with foreign nations. The latter in particular has grown considerably since Holmes made his assumption that migratory birds are
not subject to regulation by Congress and that other matters may be
dealt with by treaty which cannot be regulated by Congress.2
Under
23. For an analysis of the character and content of modern American treaties
of friendship, commerce and navigation, see Walker, Moderm Treaties of Friendship,
Comnerce and Navigation, 42 MiNN. L. REv. 805 (1958); Wilson, Postwar Cominercial Treaties of the United States, 43 Am. J. INT'L L. 262 (1949). Walker,
supra at 808, gives a synoptical outline of the contents of modern friendship, commerce
and navigation treaties.
24. Holmes' assumption that migratory birds were not subject to congressional
regulation was partly, perhaps, the result of holdings to that effect by lower courts.
See, e.g., United States v. Shauver, 214 Fed. 154 (E.D. Ark. 1914), which Holmes
cites. Among the claims rejected by the lower courts was that the birds were within
the commerce power. Comment at the time seemed to agree that the commerce
power of Congress did not reach that far, e.g., 28 HARv. L. REv. 112, 113 (1914).
Today, quite clearly, the birds would be held within the commerce power, and the
argument that they" were the property of the State would fall before that power as
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
915
the power "to regulate commerce with foreign Nations, and among the
several States," Congress has no less authority over foreign commerce
than it has over interstate commerce. And since the revolution initiated
by Jones & Laughlin,2 it no longer needs citation of authority or argument to show that under the commerce power Congress can reach all
interstate or foreign "intercourse"; it can reach matters precedent to
or subsequent to interstate or -foreign commerce; it can reach what
relates to or affects as well as what is commerce; it can reach strictly
local commerce and activities when necessary to make effective a
regulation of interstate or foreign commerce. The power of Congress
over foreign commerce would then, of itself, support legislation equivalent to a large part of the law "enacted" by treaty.2"
If it be urged that the right of the nationals of another country to
own land, to establish a local pawn shop, to practice a profession, is
remote from foreign commerce even broadly conceived, there are other
powers of Congress which would authorize legislation on these subjects
as they are generally dealt with by treaty. For, generally, the law of
the land enacted by the traditional treaties deals with the rights of
aliens in the United States, and regulation of the rights of aliens in
easily as it did before the treaty power in Holmes' opinion. Holmes, then, might have
avoided asserting his treaty doctrine and his asumption of the limitations on the
powers of Congress, by asserting a broader view of the commerce power. While his
own views of that power were probably broad enough, he had been in dissent in
Hammer v. Dagenhart, 247 U.S. 251 (1918), decided two years earlier. To take the
majority of the Court with him, the treaty doctrine was effective; the commerce power
might not have been in 1920.
25. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). For a discussion of the new commerce power see, e.g., Stern, The Commerce Claitse and the
National Economy, 1933-46, 59 HAtv. L. Rxv. 645, 883 (1946).
26. In addition to the powers discussed, there are others, the extent of which
has never been fully expressed or explored. Unknown implications of power in regard
to matters dealt with in treaties may derive, for example, from the power to establish
a uniform rule of naturalization. Compare, e.g., Hines v. Davidowitz, 213 U.S. 52,
66, 73 (1941), discussed in text accompanying note 34 infra. Much, though it is not
clear how much, can be done to regulate domestic activities related to international
affairs through defining and punishing offenses against the law of nations. Compare,
e.g., Ex parte Quirin, 317 U.S. 1, 27-30 (1942) ; United States v. Arjona, 120 U.S.
479 (1887). The war powers of Congress, spun out of the power to declare war
and other powers, have been held to justify far-reaching congressional regulation
during or after war, or in time of danger of war. Since they include the power to
act to prepare for war, they may perhaps support legislation in areas which relate
to war because they relate to affairs with other nations.
There is also the power of Congress, analogous to the one applied in Missouri -,.
Holland vis-A-vis the treaty power, to adopt laws "which shall be necessary and proper
for carrying into execution . . . powers vested by this Constitution" in the President of the United States, including his expansive powers to conduct foreign relations
and to command the Army and Navy. Indeed the entire foreign affairs power of
Congress discussed in this article might be included also as a power of Congress
auxiliary to that of the President under the "necessary and proper" clause. Perhaps,
as an independent power of Congress, it might be held to reach further than if viewed
as an auxiliary power. The former view also avoids the possible assertion that when
Congress acts only to implement the powers of the President it cannot override a
presidential veto.
916
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
these respects would today, it appears, be held to be within congressional authority. Congress has in fact adopted multivarious legislation
affecting the rights of aliens. And, with one possible and questionable
exception, 7 no act regulating aliens has been held to fall beyond the
area of congressional power. So, for example, Congress has assured
that aliens, like citizens, shall be entitled "to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
law and proceedings for the security of persons and property . . . and
shall be subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other." "
In part this legislation built on the fourteenth amendment, under
which the alien enjoys both the equal protection of the laws and the
due process of law.29 If that amendment supports the legislation cited,
it may, as well, support any congressional legislation to assure aliens
equality with citizens without regard to state laws or wishes." Con27. In Keller v. United States, 213 U.S. 138, 148 (1909), a majority of the Court
held unconstitutional a statute making it a felony to harbor alien prostitutes. Justices
Holmes, Harlan and Moody dissented. Congress then amended the statute to apply
only to harboring alien prostitutes illegally in the United States; this was unanimously
upheld. Brolan v. United States, 236 U.S. 216, 221-22 (1915).
The Keller case, of course, included only indirectly a regulation of aliens. And
language in the majority opinion denying Congress a general power to deal with
aliens qua aliens is contradicted by the Court later in Hines v. Davidowitz, 312 U.S.
52 (1941). Mr. Justice Stone dissenting in the latter case (in an opinion joined by
Chief Justice Hughes and Justice McReynolds) denied the existence in general of
a congressional police power over aliens. 312 U.S. at 74, 76; the dissent did not,
however, in fact deny the power of Congress to adopt the legislation in that case,
but argued merely that Congress had not pre-empted the field. Stone, J., took a
more conservative approach than the majority in other "foreign affairs" cases too.
Compare his opinions concurring in United States v. Belmont, 301 U.S. 324, 333
(1937), and dissenting in United States v. Pink, 315 U.S. 203, 242 (1942). The
majority in Hines v. Davidowitz not only upheld the power of Congress to register
aliens but used reasoning and language building on the relation of the treatment of
aliens to the foreign affairs of the United States, which would apply to any regulation
of aliens by Congress. See text accompanying note 34 infra.
It is highly unlikely that the Keller case would be decided the same way today
on the grounds that Congress lacked power; if at all the case might possibly be
supported only on the grounds that limiting the crime to harboring resident alien
prostitutes is a classification without reason, and therefore a violation of notions of
equal protection that might inhere in the due process clause of the fifth amendment.
See Aams CONTROL 190 n.16. In any event the statute in Keller is not the kind of
legislation relating to aliens that appears in treaties.
28. The Civil Rights Act of 1870, 16 Stat. 144, 42 U.S.C. § 1981 (1952), applies
to aliens as well as to citizens: Takahashi v. Fish & Game Comm'n, 334 U.S. 410,
419 (1948) ; Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
29. Takalhashi v. Fish & Game Comm'n, supra note 28, at 419-20; Truax
v. Raich, 239 U.S. 33, 39 (1915) ; Wong Wing v. United States, 163 U.S. 228 (1896) ;
Yick Wo v. Hopkins, supra note 28, at 369; see also the concurring opinions of
four Justices in Oyama v. California, 332 U.S. 633, 647, 650 (1948). See Comment,
The Alien and the Cowstitution, 20 U. OF CHL L. REv. 547, 564 (1953).
30. See authorities cited note 28 supra. While there are earlier cases upholding
the power of a State to discriminate against aliens in some respects (e.g., Ohio ex rel.
Clarke v. Dekebach, 274 U.S. 392 (1927); Terrace v. Thompson, 263 U.S. 197
(1923) ; Heim v. McCall, 239 U.S. 175 (1915)), "the power of a state to apply its
laws exclusively to its alien inhabitants as a class is confined within narrow limits."
Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948). The validity of those
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
917
gress can declare that "One law shall be to him that is homeborn, and
unto the stranger that sojourneth among you," or, in the language of
treaties, confer "national treatment" on aliens in all respects in which
that has been done traditionally by treaty.
And there is another power. For if the fourteenth amendment
supports legislation affording aliens equality with citizens in respects
in which that is frequently provided by treaty, it would hardly lend
authority for other regulations of aliens, not applicable to citizens,
which Congress has enacted. Congress has adopted legislation discriminating against the alien. Aliens have been excluded; they have
been deported; they have been subjected to special registrations; in time
of national emergency they have been confined, their property taken.
And on the other hand Congress has given aliens-as treaties have
done-preferences, exemptions, privileges not enjoyed by citizens, for
example, certain diplomatic and quasi-diplomatic treatment, or freedom
from military service. 3 The power of Congress to regulate the
cases has been put into question by the Takata~rhi case; and compare the Oyama
case, particularly the concurring opinions, supra note 29.
In none of the earlier cases, the Court itself has pointed out, had Congress passed
legislation on the subject. See Hines v. Davidowitz, 312 U.S. 52, 68-69 n.23 (1941) ;
see also Comment, The Alien aid the Constitution, supra note 29, at 569. An act
of Congress conferring upon aliens equality in every respect in which alien rights
are dealt with by treaty would, I believe, be upheld under the fourteenth amendment
and the foreign affairs power discussed below, subject, of course, to limitations on this
as on other powers of Congress contained in the Bill of Rights and elsewhere in the
Constitution. Cf. note 62 infra and accompanying text.
31. See e.g., Axus CoNTRoL 88-93, 212-17; some of the legislation cited is not in
implementation of a treaty. For exemptions of aliens from military service, see, e.g.,
Selective Draft Act of 1917, ch. 15, § 2, 40 Stat. 77; Selective Service Act of 1940,
cl. 720, §3, 54 Stat. 885 (now 50 U.S.C. §454 (1952)). While aliens have
challenged the right of Congress to draft them, no one has challenged the right of
Congress to exempt aliens. Usually it is considered that in either event Congress is
acting under its power to raise and support armies. Cf. United States v. Lamothe,
152 F.2d 340 (2d Cir. 1945). Congress has also provided that foreign servicemen
might be tried by their own military authorities (during World War II), and that
some cases involving foreign seamen might be handled by their consuls. See notes
40, 41 infra. And of course there are taxes and regulations which apply to Americans
only on the basis of nationality which could not apply to aliens, e.g., taxes on nonresidents on income from sources abroad; treason. Cf. the Logan Act, note 47 infra.
That an act of Congress, like a treaty, may sometimes give aliens preferences
over citizens was said by the court in Todok v. Union State Bank, 281 U.S. 449,
454-55 (1930), and cited again in Hines v. Davidowitz, supra note 30, at 65.
Cf. Harisiades v. Shaughnessy, 342 U.S. 580, 585-86 (1952). In fact there has
been little occasion for the United States to do so either by treaty or by act of
Congress. Nations seek such provision, as has the United States in some other
countries, where the treatment accorded to nationals leaves something to be
desired and where the beneficiary nation has the bargaining advantage, as, e.g.,
when the western nations obtained extraterritorial privileges in China, Morocco,
et al. In the United States, the "treatment" accorded to American nationals is
very high, and when the United States grants "national treatment' to nationals
of a friendly country, they receive favorable treatment indeed. Even apart from
treaty, the rights enjoyed by all aliens under the Constitution and acts of Congress
are higher than international standards generally. Apart from diplomatic and
related privileges and immunities, exemption from military service appears to be
the only preference nations have sought in the United States in recent times.
And that too is no longer accorded by the newer American treaties.
918
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
presence and status of aliens has been related to the power of Congress
to admit or exclude aliens. But that too is not an enumerated power.
Where does it lie?
While control of alien immigration has been mentioned as an
incident of the power of Congress over foreign commerce, the accepted
basis is a different power of Congress. The power to admit and to
regulate aliens derives from an implied congressional power-the
"power of Congress to deal with foreign affairs." The power, we shall
see, extends beyond aliens to other matters relevant to our examination
of the comparative reach of the powers of Congress and the treaty
power. To survey its content, size, and scope, it seems appropriate to
trace its genesis, growth and acceptance, so far as that can be done for
a constitutional doctrine which has no place or date of birth but was
several times found to be there.
In the Chinese Exclusion Case, the Court upheld the power of
Congress to exclude certain Chinese laborers. Invoking Chief Justice
Marshall, Mr. Justice Field asserted the sovereignty of the United
States undiminished and equal to that of any other nation. He said
that "the United States in their relation to foreign countries and their
subjects and citizens are one nation, invested with powers which belong
to independent nations." He quoted Mr. Justice Bradley saying that
the United States "has jurisdiction over all those general subjects of
legislation and sovereignty which affect the interests of the whole people
equally and alike .
.
.
."
Mr. Justice Field went on to say: "for
national purposes, embracing our relations with foreign nations, we
are but one people, one nation, one power." He recognized the inherent,
sovereign power of the United States to "preserve its independence, and
give security against foreign aggression and encroachment." This
power he found in "the government of the United States through its
legislative department." But it was apparently not the war power that
Justice Field had in mind. The power to exclude aliens was the same
"sovereign power" which empowered Congress, not necessarily in the
name of the "security" of the United States, to adopt legislation to
admit aliens. Subsequently, this same power was held to authorize the
deportation of aliens, even though lawfully admitted. This time the
Court said also: "The power to exclude or expel aliens being a power
affecting international relations, is vested in the political departments
of the Government, and is to be regulated by treaty or by act of
32. 130 U.S. 581 (1889). Earlier the Court had found the power to regulate
immigration in the foreign commerce power. Head Money Cases, 112 U.S. 580
(1894).
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
919
Congress." s The power to exclude or deport aliens, then, was itself
an aspect of a broader power over matters "affecting international
relations."
In Hines v. Davidowitz, 4 the Supreme Court invalidated Pennsylvania's Alien Registration Law because it encroached on a field
reserved for federal action and pre-empted by valid congressional
legislation. Mr. Justice Black upheld the Federal Alien Registration
Act and held that it barred state action. He reaffirmed "the supremacy
of the national power in the general field of foreign affairs." "When
the national government by treaty or statute has established rules and
regulations touching the rights, privileges, obligations or burdens of
aliens as such, the treaty or statute is the supreme law of the land."
"One of the most important and delicate of all international relationships
. . . has to do with the protection .
.
. of a country's own na-
tionals when those nationals are in another country." And "the regulation of aliens is .
.
.
intimately blended and intertwined with respon-
sibilities of the national government." The "treatment of aliens" is
"a matter of national moment." :5
For purposes here relevant, then, Congress can regulate aliens
under a power implicit in the sovereignty of the United States; "the
supremacy of the national power in the general field of foreign affairs"
includes a power of Congress to legislate in regard to such affairs.
But the power reaches beyond aliens, and brings into the ken of
Congress much else which is relevant to this inquiry. Perhaps the
fullest expression of the power was that of Mr. Justice Sutherland, in
a case not involving aliens at all. The Curtiss-Wright case " upheld
the power of Congress to authorize the President to promulgate an
arms embargo, and to make it a crime to violate such an embargo. The
Court might have limited itself to a reference to the power of Congress
over foreign commerce. It might perhaps have mentioned the power
to define offenses against the law of nations. It might have invoked
33. Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893). See Harisiades
v. Shaughnessy, 342 U.S. 580, 585 (1952). One might suggest that while a sovereign
power to decide which aliens may enter and reside would apply to all aliens, a power
to admit, exclude, deport and especially regulate aliens based on "effect on international relations" might not support action in regard to stateless persons who have
no government, relations with which could be affected.
34. 312 U.S. 52 (1941). The Court cited, inter ald, several of the Federalist
Papers for its view of a broad foreign relations power. Id. at 62 n.9.
In Harisiades v. Shaughnessy, snpra note 33, at 588-89, the Court said, "It
is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations.
"
I do not deem it necessary to deal here with constitutional limitations
applicable to all powers of Congress to deal with aliens. Compare the Harisiades
case; Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Knauff v. Shaughnessy,
338 U.S. 537 (1950). See note 62 infra and accompanying text.
35. 312 U.S. at 62-63, 64, 66, 73.
36. United States v.Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
history, noting that Congress had authorized such an embargo in the
first years of the Nation. But Justice Sutherland developed in full a
"foreign relations" power of the United States, implied in its sovereignty. He rejected any doctrine of "enumerated powers" as far as
concerned foreign affairs, an area which was not carved from the
sovereign powers of the States but which passed undiminished to the
federal government from the British Crown. He emphasized that
congressional delegation to the President in this field may go very far,
and that, when joined, the powers of Congress and President in foreign
affairs added up to the whole sovereign power of the United States to
act in regard to foreign affairs.
There were other cases, before and since Curtiss-Wright, which
invoked this power to support legislation relating to American citizens.
In 1915 the Court upheld a statute which, in effect, deprived a woman
of her American citizenship if she married an alien 7 The Court said:
"But there may be powers implied, necessary or incidental to the
expressed powers. As a government, the United States is invested with
all the attributes of sovereignty. As it has the character of nationality
it has the powers of nationality, especially those which concern its
relations and intercourse with other countries. We should hesitate
long before limiting or embarrassing such powers." In 1958, the Court
upheld a statute under which an American citizen was expatriated, his
citizenship canceled, for having voted in a foreign election. The Court
upheld this statute as a valid exercise of the "power of Congress to
deal with foreign relations." " The case was a five-four decision over
sharp dissent. But while three of the dissenters insisted that the
Constitution did not permit Congress to cancel citizenship-an implied
constitutional limitation akin to those in the Bill of Rights-no dissenting Justice questioned the basis for congressional authority asserted by
the majority: that Congress could legislate in regard to these matters
under a "foreign affairs power."
So, in addition to several other broad powers in Congress, we have
the "foreign affairs power." We may say with confidence that this
power supports any reasonable regulation of the rights of aliens; even
as to citizens it supports such limitations on freedom of action as may
be deemed by Congress reasonably necessary in the interests of United
States foreign relations. Without inducing or extrapolating too boldly
from what the, Supreme Court has held and said, it can be asserted that
the foreign affairs power of Congress, of itself or, surely, with other
powers we have mentioned, can support enactment of virtually any
37. Mackenzie v. Hare, 239 U.S. 299, 311 (1915).
38. Perez v. Brownell, 356 U.S. 44 (1958).
19591
THE LAW OF THE LAND AND FOREIGN RELATIONS
921
provision contained in any treaty in the history of the United States:
in agreements conferring diplomatic and other rights on foreign
governments and foreign officials; in disarmament agreements; in
treaties of friendship, commerce and navigation; in extradition treaties,
even as applied to American citizens; " in reciprocal taxation and trade
treaties; in status-of-forces and other military agreements which
became law in the United States.'o Congress could without a treaty
make such legislation applicable to nationals of other nations or to
Americans on a reciprocal or parallel basis. 1 Congress could also, it
would seem, enact them without reciprocity in the hope that other
nations would do likewise, or because of other impact which such
39. The Court has not had occasion to rule on the question since Congress has
not in fact provided for extradition, except under a treaty or to a country or territory
occupied by the United States. Valentine v. United States ex rel. Neidecker, 299
U.S. 5, 9 (1936). See Neely v. Henkel, 180 U.S. 109, 122 (1910) ; United States v.
Rauscher, 119 U.S. 407, 412, 414 (1886) ; 62 Stat. 823 (1948), as amended, 18 U.S.C.
§ 1385 (1952). In one ease, in a statement perhaps necessary to the result, the Court
clearly asserted the power of Congress to extradite, at least as regards aliens, even
without a treaty. See Grin v. Shine, 187 U.S. 181, 191 (1902). Where extradition
was provided by treaty it was upheld as applied to United States citizens as well.
Charlton v. Kelly, 229 U.S. 447, 466 (1913); cf. Valentine v. United States ex rel.
Neidecker, supra.
40. Compare the Service Courts of Friendly Foreign Forces Act, 58 Stat. 643
(1944), 22 U.S.C. § 701 (1952).
The settlement of claims between the United States or U.S. citizens and foreign
nations or nationals, frequently handled by agreement, is probably also a subject for
congressional legislation. Sometimes such settlements are the aftermath of warlike the provision in issue in the leading case, Ware v. Hylton, 3 U.S. (3 Dall.)
199 (1796)-and would be within the war powers of Congress. Cf. The War Claims
Act of 1948, 62 Stat. 1240, as amended, 50 U.S.C. §2001 (Supp. V, 1958). See
also the World War Foreign Debts Commission Act, ch. 47, 42 Stat. 363 (1922).
In theory, also, transnational claims, even those involving rights of private persons,
are regarded, for many purposes at least, as the claims of the government, and can
presumably be dealt with by Congress on that basis. Cf. Aius CONTROL 109-10,
230-31.
41. Congress has adopted legislation conferring rights only upon aliens whose
governments grant similar rights to United States nationals. E.g., 43 Stat. 113
(1925), 46 U.S.C. §785 (1952), and 28 U.S.C. § 2502 (1952) (suits by aliens against
the United States); REy. STAT. § 4079 (1875), 22 U.S.C. § 256 (1952) (jurisdiction
granted to foreign consuls over their seamen, only where other nation grants same
to United States consuls by treaty). See also Act of Oct. 1, 1890, ch. 1244, 26 Stat.
567, 612, Field v. Clark, 143 U.S. 649 (1892); Canadian Reciprocity Act, ch. 3, 37
Stat. 4, 6, 10, 12 (1911); Nolan Act, ch. 26, 41 Stat. 1313 (1921), Robertson v.
General Electric Co., 32 F2d 495 (4th Cir.), cert. denied, 280 U.S. 571 (1929).
See also Aiss Co
0oL215, r.35. The Robertson case shows how Congress used
reciprocal legislation as a substitute for a treaty to which the Senate did not consent.
Germany, in that instance, adopted reciprocal legislation. See also note 57 infra.
For other reciprocal legislation see 22 Stat. 346 (1882), as amended, 46 U.S.C. §362
(1952) (reciprocal vessel-inspection); Ray. STAT. § 4228 (1875), 46 U.S.C. § 141
(1952) (reciprocal tonnage duties); 45 Stat. 1493 (1929), 49 Stat 889 (1935), 46
U.S.C. §85(d), §88(d) (1952) (reciprocal recognition of ship-load lines). Cf. Rxv.
STAT. § 4154 (1875), as amended, 46 U.S.C. § 81 (1952) (similar tonnage-measurement of vessels) ; see also Act of May 24, 1828, ch. 111, § 2, 4 Stat. 308; Act of
May 28, 1864, § 4, ch. 98, 13 Stat. 93. There are also reciprocal provisions in our
tax law, e.g., INT. Rav. CoDE oF 1954, § 883 (reciprocal exclusion from gross income
of earnings of foreign vessels and aircraft), and § 861 (authority to double tax on
citizens of country which imposes discriminatory or extraterritorial taxes on United
States citizens). And see the reciprocal treatment of visa fees in the former law,
Act of Feb. 25, 1925, ch. 316, 43 Stat. 976, and in the current act, 66 Stat. 230, 8 U.S.C.
§ 1351 (1952).
922
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
provisions would have or might have on the attitudes of other nations
toward the United States and United States citizens.'
III
The assumption that there are matters of national exigency that a
treaty could deal with but that Congress could not, seems no longer,
then, to apply to matters in fact contained in the standard treaties of
the United States, past or present. If there are any treaty provisions,
particularly those dealing with rights of Americans, which still escape
the long reaches of congressional power which we have discussed, they
will be subsumed in the discussion tofoll!ow. For it remains to be seen
to what extent the assumption we are examining has validity in regard
to what have been called the "new treaties." The treaty power, we have
said, reaches to all matters of international concern, including those
new forms which now concern nations, i.e., "uniform international legislation" such as the draft Covenant on Human Rights or a genocide
convention. Could Congress reach these too?
The constitutional doctrine which I venture to assert for scholarly
debate is far-reaching, but it can be stated simply. Under its foreign
affairs power Congress can enact legislation on any subject which deals
with, relates to, or affects the relations of the United States with other
nations. The foreign affairs power can support legislation on any
matter of "international concern." If-to use the difficult examplesgenocide in the United States, if local labor conditions in the United
.States, if the status of human rights in the United States, are deemed
to require regulation in the interests of United States foreign relations,
Congress has the power to deal with them.
Let it be said immediately that there is no precedent for so broad a
proposition in decisions of the Court, and little in other authorities.
Congress has not invoked such broad powers, perhaps because other
powers amply support legislation which Congress has desired; perhaps
because Congress has not recognized its own powers; perhaps because
Congress has not seen fit to exercise powers which it possesses. And
since Congress has not relied upon the powers, the courts have not had
42. This conclusion is contrary to the position taken by the opponents of the
Bricker Amendments. See note 4 supra. Their views that the powers of Congress
are limited were taken, of course, in the exigency of controversy, to show the dangers
of the proposed amendments. Perhaps too they were afraid that courts someday
might take the position that various powers of Congress are more limited than here
suggested. See note 51 infra.
The views here expressed, however, go far beyond the position of the Brickerites,
most of whom denied that Congress could deal with the right of aliens to own or
inherit land, run pawn shops or practice professions. And, of course, the suggestion
in the pages to follow that Congress can legislate on any matter which can be dealt
with by treaty would destroy the basis of the Bricker position and of its proposed
"remedy."
See text and notes at notes 65-68 infra.
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
923
opportunity to examine whether such powers exist and are validly
invoked. An implied power, never exercised or asserted, is of course
difficult to prove. And yet, the Court has spoken of the foreign affairs
power in the broadest terms. The United States "has jurisdiction over
all those general subjects of legislation and sovereignty which affect the
interests of the whole people equally and alike." 4 "The United States
are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all
the powers of government necessary to maintain that control and make
it effective.
.
. . The power .
.
. being a power affecting inter-
national relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress."
44
"As a
nation with all the attributes of sovereignty, the United States is vested
with all the powers of government necessary to maintain an effective
control of international relations." 45 "As it has the character of
nationality it has the powers of nationality, especially those which
concern its relation and intercourse with other countries. We should
hesitate long before limiting or embarrassing such powers." 4
And there are arguments to be made in behalf of this broad view of
the foreign affairs power, and precedents to lend it weight. For, first,
we have seen that Congress can deal not only with matters which
relate directly to the conduct of foreign affairs,47 but as well with others
merely because of their possible effect on the foreign relations of the
United States. If Congress can regulate aliens, if it can deprive citizens
of freedom to act under pain of expatriation, because these matters affect
or might affect the international relations of the United States, why
cannot Congress regulate other matters which affect or might affect the
same relations?
Second, we would recall that matters which affect foreign relations
are of "international concern" and, therefore, already in the federal
domain. They are-as we have seen and as all now recognize, however reluctantly-subject to the treaty power. If today nations are
43. Bradley, J., concurring in Legal Tender Cases, 79 U.S. (12 Wall.) 457, 555
(1871). The sentence quoted did not itself refer expressly to foreign relations, but
they are included in the context.
44. Fong Yue Ting v. United States, 149 U.S. 698, 711, 713 (1893).
45. Burnet v. Brooks, 288 U.S. 378, 396 (1933).
46. Mackenzie v. Hare, 239 U.S. 299, 311 (1915), quoted in Perez v. Brownell,
356 U.S. 44, 52 (1958).
47. E.g., the "Logan Act" of 1798, amended but still law, which makes it criminal
for a citizen to communicate with a foreign government with intent to influence it
in relation to a controversy with the United States. The.present version is 18 U.S.C.
§ 953 (1952). Congress has also made it a crime to harass or assault diplomatic
personnel. REv. STAT. §§ 4063-64, as amended, 22 U.S.C. §§ 252-53 (1952); 18
U.S.C. §§ 112, 1545 (1952). Such legislation could be supported amply either under
the foreign affairs power of Congress, or as necessary and proper to give effect to
the President's powers to conduct foreign relations. See note 26 supra.
924
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
concerned about the transnational effects of domestic labor standards,
of genocide, or of human rights, the United States can negotiate on
these subjects and conclude treaties which would be properly law of
the land. Is there anything in the Constitution, in the history of its
creation or of its development, in the pattern of government which it
established, which suggests that this power in the national government
to "legislate" on such matters of international concern must be exercised
only through the treaty power, not by act of Congress, the nation's
principal legislator? The power to make treaties, we suggested, is
itself one aspect of the sovereign power of the nation in international
affairs. That power authorizes treaties on all matters which concern the
United States today in its relations with other nations. The power ot
Congress to legislate on matters which relate to foreign affairs derives
from the same sovereign power of the nation in international affairs;
why should not that power authorize legislation on all matters which
concern the United States today in its relations with other nations?
If in order to affect events and attitudes abroad the United States can
enter into a treaty regulating matters in the United States, why cannot
Congress so regulate for the same purpose? If a genocide treaty, why
not genocide legislation? Is there any reason to conclude that the
Constitution requires international agreement before there can be
legislation in the United States on matters of international concern?
Does the Constitution insist that the United States can adopt "international legislation" on any matter of international concern by treaty,
but may not be able to do so by having Congress adopt reciprocal or
parallel legislation for the same reasons of international relations, unless
the subject matter happens to be a matter which Congress can regulate
apart from international consequences?"4
The United States can
adhere to a genocide convention or to an agreement on international
labor standards or to a treaty on arms control. But if, instead of
entering such an agreement, the Soviet Union outlawed genocide in the
Soviet Union, or adopted a "uniform labor code," or established an
inspection system to permit international inspectors to check on selfimposed armaments limitations, and challenged the United States to
do likewise, is Congress without power to adopt such legislation if it
chose?
And, further, we would invoke the analogy of the power to regulate foreign commerce. The statement of the proposition that Congress
may regulate that which deals with, relates to, or affects the foreign
48. See note 41 supra. Congress may adopt such legislation because the Senate
rejected a treaty, ibid., or because nations could not agree on a treaty. Reciprocal
legislation may be preferable where Congress wishes to be free to discontinue an
arrangement without incurring the onus of breaching an agreement.
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
925
relations of the United States, may stir familiar echoes, as was indeed
intended. For today, there can be little doubt, Congress can under
the commerce power reach very far to regulate matters affecting commerce; and in no case since the new doctrine has been discovered in
the Constitution has the Court found the effect too tenuous, the
relation to commerce too far-fetched, the regulation unreasonable. Is
there any reason to read the Constitution as intending greater scope
to the foreign commerce power than to the foreign affairs power? Is
there any reason to say that the constitutional development of the
foreign affairs power must remain at a stage corresponding to the
pre-1937 era in the life of the commerce power? Is it unreasonable to
infer that the Constitution, which authorizes legislation regulating not
only foreign commerce but what affects foreign commerce, authorizes
also the regulation not only of other foreign intercourse but also of what
affects such foreign intercourse? "' Linguistic parallels do not, of
course, make mathematical equations, and neither afford a sure basis
for developing new constitutional doctrine by analogy. "Effect on
foreign commerce" may have very different meaning, with different
constitutional consequences, from "effect on foreign relations." But
similarity of phrasing suggests that behind both commerce and other
foreign intercourse is the identical concern of the Constitution to vest
in the national government authority to deal with what affects the
nation as a whole; it is this concern which authorizes Congress to deal
with what "affects" foreign commerce, and-as we have seen-what
affects foreign relations (e.g., aliens). May not this same concern
empower Congress to deal with any matter which today concerns the
nation as a whole because it today has effect on the foreign relations
and interests of the United States? Is it more startling, more subject
to abuse, that matters which are "otherwise local" may be reasonably
deemed by Congress to require regulation in the interest of United
States foreign relations, than that Congress make similar assumptions
of power in the regulation of commerce, or through the taxing power?
Should it be admissible to show, at some times and in some situations,
if Congress were disposed so to regulate, that the regulation of standards
of labor in the United States is reasonably related to international trade
or other international intercourse, or that the regulation of social and
economic standards is reasonably related to international peace and to
the relations among nations? Differences in degree, of course, are and
continue to be constitutionally crucial. But as changing circumstances,
as a contracting continent, as greater or more apparent interdependence,
have brought within the power to regulate interstate commerce "local"
49. Cf. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90 (1824).
926
UNIVERSITY OF PENNSYLVANIA LAW REVIEW*
[Vol. 107
matters whose effect on interstate commerce was not at first recognized,
may not changed relations among nations in a smaller, more interdependent world similarly have become the concern of the nation?
May not Congress decide that United States foreign interests require
this regulation, that "foreign policy begins at home"?
This array of questions is intended, of course, to evoke an affirmative answer; or, at least, to suggest that the answer is not clearly no.
In addition to argument and analogy, there is also some precedent
which deserves mention. The previous section described the leading
cases, the bricks from which the implied foreign affairs power of
Congress was built. To extend the compass of this power, other
bricks could be found, and some straws from which bricks might be
made. Consider the power of Congress by joint resolution to approve
or authorize international agreements. Particularly after World War
II, in the era of new world organizations and new forms of international cooperation, some government officials and public commentators urged a preference for a method, alternative to the treaty,
for making international agreements and enacting them into United
States law. The treaty power, it was urged, was not the only method,
or indeed the better method. The Senate, it was feared, might again
prove to be "the graveyard of treaties," especially since the Constitution
has provided that a Senator voting "no" be deemed "ipso facto twice
as well informed and weighty as one of his colleagues who votes
'yes.' " 0 It might not be possible, it was feared, to obtain consent to
the new international agreements from a body which was inherently
more conservative and in which both isolationism and States rights
had deep roots. Giving the House of Representatives a role in the
approval of an international agreement, it was urged, would make for
a more "democratic" foreign policy and would bring American practice
in this respect into line with that of other democratic countries. It
would, in addition, eliminate recurrent uncertainties as to whether a
treaty was "self-executing." And Congress could simultaneously enact
any necessary implementation.
Extended debate between writers as to whether this method was
as appropriate and as effective as a treaty for all purposes seemed to
resolve the issue in favor of those who argued that it was.5 In one
50. The phrase is that of John W. Davis, in support of an earlier effort to
circumvent the Senate's "veto" on treaties. 48 A.B.A. REP. 193, 203 (1923).
51. Coitpare McDougal and Lans, Treaties and Congressional Executive or
Presidential Agreements: Interchangeable Imtruments of National Policy, 54 YAIE
L.J. 181, 534 (1945), with Borchard, Shall the Executive Agreemients Replace the
Treaty?, 53 YA.LE L.J. 664 (1944), and Borchard, Treaties and Executive Agreements
-A Reply, 54 YALE L.J. 616 (1945). Several years earlier a book was devoted to
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
927
important instance the Department of State sought and obtained an
opinion of the Attorney General to assure members of the United
Nations that the proposed Headquarters Agreement between the United
States and the United Nations would be as effective for all purposesincluding the supersession of state law-if approved by joint resolution
Thus it was done.5" But by what authority
rather than by treaty.'
the cause of the executive agreement. McCLuPE, INTERNATIONAL EXECUTIVE AGREEmENTS (1941).
There is irony, and there are perhaps some lessons, in the fact that many who
had earlier decried the treaty power were among its strongest defenders against the
Bricker Amendments. The explanation, of course, is that earlier the treaty process
was viewed as a serious obstacle to United States ratification of international agreements. Those who favored more extensive international cooperation sought a more
In the Bricker
liberal alternative in the executive-agreement-plus-joint-resolution.
controversy the issues were different. The Bricker Amendments would have made
it impossible for the United States to adhere--by either method-to any agreement
which went beyond the powers of Congress, which were assumed to be more limited.
To preserve this power to make agreements broader than the powers of Congress,
opponents of Senator Bricker sought to preserve both the treaty method and the
executive agreement. Perhaps, too, they were concerned to keep the treaty power
intact lest one day the Senate insist that approval as a treaty was the only appropriate way.
Some versions of the Bricker Amendments did not favor the treaty method as
against the President-and-Congress approach. In fact, providing, in the first aspect
of the "which" clause (see text accompanying note 65 infra), that every treaty must
be implemented by legislation, may have rendered it far less likely that the treaty
method would be used: Why send an agreement to the Senate for approval by twothirds of the Senators present, and then again to both houses for legislation to
execute it, when the same result could be achieved by one joint resolution of both
houses? In the 1957 version of the amendment, however, the fight to cut treaties
"down to the size of the powers of Congress" had been abandoned; the "which"
clause was to apply only to executive agreements. This would have meant that
one of the "new" international agreements, dealing with a matter assumed to be
beyond the power of Congress alone, could not be adopted by executive agreement
plus joint resolution. Such an agreement would have to get by the Senate as a treaty.
And, under § 2 of the 1957 version, congressional implementation would still be required
to make that treaty the law of the land, unless the Senate, in consenting, affirmatively
provided that it should be self-executing. See S.J. Res. 3, 85th Cong., 1st Sess. (1957).
52. 40 Ops. ATT'Y GEr. 469 (1946). The opinion does not state expressly the
basis of congressional authority, but Curtiss-Wright is among the cases invoked.
The opinion of the Attorney General dealt only with the particular agreement
before him. It may be argued that the executive-agreement-plus-joint-resolution is
available as an alternative method only where the agreement in question is within
the power of the President or of Congress; the Headquarters Agreement, for instance,
was within their power because it implemented a treaty of the United States (the
United Nations Charter), and dealt with a matter directly relating to the conduct
of foreign relations. One need not conclude, it would be urged, that the sum of these
powers of Congress and President necessarily covers any matter of international
concern, as does the treaty power. Whether the powers of President plus Congress
equal the treaty power may depend on one's view of the scope of the power of the
President (see note 54 infra), and of the foreign affairs power of Congress. CurtissWright, in another context, suggested that the powers of the President and Congress
together add up to the full sovereign power of the United States to act in foreign
affairs. 299 U.S. at 318. The argument that the Constitution established two equal
alternative methods for making international agreements may be more readily acceptable if the power to make treaties, like the foreign affairs powers of Congress
and the President, is viewed as an implied power. See note 6 supra.
53. Agreement With the United Nations Regarding the Headquarters of the
United Nations, June 26, 1947, 61 Stat. 756, 3416, T.I.A.S. No. 1676. The Headquarters Agreement, § 8, provides that state as well as federal law may be rendered
inapplicable in the Headquarters District by appropriate United Nations regulations.
See ARms CONTROL 149.
928
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
does Congress authorize or approve such international agreement? If
it could be assumed that the Executive had authority of his own to
make the agreement, one might urge that Congress is only adopting
legislation "necessary and proper" to implement the President's power.
If the treaty-making provision of the Constitution is to have meaning,
however, it would hardly be urged that every -international agreement
is within the President's power to make as an executive agreement
without Senate consent.5 4 The President's power alone, then, woufd
appear, in some cases at least, inadequate to support the international
agreement and make it so binding on the United States as to be enforceable in courts of the United States. If the joint-resolution-cuinexecutive-agreement is the full equal of a treaty it must be on some
theory under which congressional approval of an executive agreement
is part of the process of adopting the agreement on behalf of the
United States, like the role of the Senate in making a treaty.5 In the
case of the United Nations Headquarters Agreement, indeed, Congress
authorized the President in advance to conclude an agreement already
negotiated but not ratified. This, surely, is not to be considered "advance implementation" under the same "necessary and proper" power."
Congress, one may rather say, is acting under a power to legislate in
regard to foreign relations, just as it does under other powers when it
authorizes international postal or trade agreements. 7 And if indeed
this method is fully as effective as ratification of a treaty, if it is not
limited to agreements dealing with matters "otherwise" within the
54. For argument in support of plenary executive power, see McCLuRE, INERNATIONAL EXECUTIVE AGREEMENTS 330, 359-64 (1941).
A somewhat different statement is the view that the President has authority to
bind the United States in every case, just as he can by treaty, but that to become
law of the United States the executive agreement requires congressional implenentation. This view too has its difficulties. Even to bind the United States internationally
it would seem that executive agreements alone are not sufficient in every case; otherwise there is little left to the role reserved to the Senate by the Constitution. And,
on the other hand, some executive agreements themselves have effect as law of the
land. United States v. Pink, 315 U.S. 203 (1942) ; United States v. Belmont, 301
U.S. 324 (1937).
55. See McDougal and Lans, supra note 51. This is another respect in which
the powers of Congress and the President when joined are plenipotentiary. See
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936), discussed
in text accompanying note 36 and in note 52 supra.
56. But cf. Moore, in PRoc. Am. PHiL. Soc'y, xv-xvi (1921). Compare WRIGHT,
THE CNROL OF AMERICAN FOREIGx RELATIoNs 233, 375 (1922); McDougal and
Lans, mtpra note 51, at 201.
McCLuRE, op. cit, supra note 54, at 332, 372, suggests that perhaps congressional
"authorization" is merely an assertion by Congress that it does not intend to use its
power in opposition. This assumes that if Congress is silent the executive agreement
can in every case become sua sponte law of the land. McClure himself prefers to find
some constitutional authority for the role of Congress in authorizing executive agreements, though he seems to treat it as a special power that has developed; he does not
apparently relate it to the foreign affairs power. Ibid.
57. See McDougal and Lans, supra note 51, at 255-61.
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
929
jurisdiction of Congress, it suggests that in this respect at least the
power of Congress reaches to include any provision which can be
enacted by treaty.
As another instance, consider one aspect of the relation of Congress
to treaties to which we have already alluded. It is established, we have
seen, that legislation adopted by Congress is law of the land and would
supersede any inconsistent, earlier treaty provision." Usually, however, the doctrine expressed is that for domestic purposes Congress has
the power to repeal a treaty or treaty provision. Every case which
has so held, every context in which this was said by the Court, involved
a statute under an admitted power of Congress-say, a tariff inconsistent with a treaty obligation, or a discriminatory immigration provision in violation of an international undertaking. But it has not
generally been suggested that there are some treaty provisions which
Congress could not repeal since Congress could not enact such
provisionsP9 In the Head Money Cases," while the legislation which
58. See text following note 6 supra. And see particularly Aius CONTROL 173-74.
59. But Mr. Justice Field in the Chinese Exclusion Case said: "If the treaty
operates by its own force, and relates to a subject ze4thin the power of Congress, it
can be deemed in that particular only the equivalent of a legislative act, to be repealed
or modified at the pleasure of Congress." 130 U.S. 581, 600 (1889).
(Emphasis
added.) This limitation was asserted previously by Mr. Justice Curtis, on circuit,
in the early case much cited in the Supreme Court in support of the power of Congress
to repeal a treaty. See Taylor v. Morton, 23 Fed. Cas. 784, 786 (No. 13,799) (Curtis,
Circuit Justice 1855), affirmwd, 67 U.S. (2 Black) 481 (1863).
60. 112 U.S. 580, 599 (1884). See also La Abra Silver Mining Co. v. United
States, 175 U.S. 423, 460 (1899).
In the Head Money Cases, supra, Mr. Justice Miller seems to derive some support
for the power of Congress to repeal treaties from its power to declare war, which
usually suspends or destroys treaties. Cf. the Chinese Exclusion Case, supra note 59,
at 600. It seems somewhat strained to say, in regard, for example, to a multilateral
treaty with eighty nations, that because Congress could theoretically declare war on
each of those eighty nations, it can also repeal provisions of that treaty domestically
without declaring war. And Mr. Justice Curtis (see note 59 supra), while he derived
support from the war power, said that under that power Congress could destroy
treaties only by actually declaring war.
One might perhaps labor and bring forth an argument supporting the power of
Congress to repeal treaties by its authority to define offenses against the law of
nations. Violation of a treaty is an offense against the law of nations. Congress
can define and punish the violation of any treaty provision as such an offense. Congress can, then, also declare that violation of a particular treaty obligation shall not
be an offense within the U.S., by "repealing" it.
There have been suggestions also that the power of Congress to repeal a treaty
provision is part of, or related to, a power to denounce treaties or direct the President
to denounce them. Congress has in fact presumed to do so, e.g., 1 STAT. 578 (1798),
quoted by both Field and Curtis (see note 59 supra) in a discussion of the power of
Congress to enact legislation inconsistent with a treaty. But Curtis, in support of
the power of Congress to repeal the treaty in that case, argued that if Congress could
not do so, repeal could be achieved only by a new treaty requiring the agreement
not only of the President and Senate but also of the other party, thus leaving the
state of United States law in the control of a foreign government. Justice Curtis,
then, did not, apparently, believe that anyone-the President, alone or with the Senate,
or the Congress--could terminate any treaty domestically by denouncing it. The
1798 denunciation by Congress, which Curtis cited, he accepted apparently because
it dealt with a subject on which Congress could legislate. It has also been suggested
930
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 107
was upheld in fact involved an act of Congress which had support in
other congressional power, Mr. Justice Miller asserted without qualification that a treaty "is subject to such acts as Congress may pass for
its enforcement, modification or repeal." And indeed the power to
repeal treaties has been widely asserted as one of the safeguards against
abuse of the treaty power, with particular reference to the "new
treaties," those which deal precisely with matters which, it has been
assumed, are beyond the powers of Congress. 1
On what authority can Congress "repeal" a treaty provision by
legislation which cannot be justified under "accepted" powers of Congress? Missouri v. Holland does not provide an answer. Congress,
that case said, has powers to adopt legislation "necessary and proper"
to implement a treaty. A statute to repeal a treaty is hardly "necessary
and proper" for carrying it into execution. In fact, the power to modify
or repeal for domestic purposes any treaty provision can only be supported if Congress has full legislative power to deal with any matter
which can be "enacted" by treaty, if the power of Congress extends to
all matters of "international concern" coincidentally with the treaty
power.
IV
The Constitution amply provides the national government with
necessary powers to act effectively in matters which relate to other
nations, which affect relations with other nations. This includes power
to make agreements with other nations on matters of "international
concern"; it includes also power to enact laws in the United States on
matters of international concern. The national government may make
that that particular denunciation by Congress was, in the political context, practically
a declaration of war. In general, directions of Congress to the President to denounce
treaties have sometimes been disregarded by Presidents, and this alleged power of
Congress has been questioned. WRIGHT, op. cit. supra note 56, at 258-59. Denunciations of treaties, moreover, are "international acts" rather than legislative in character. The power to declare war is the only such "international ace' expressly
committed to congressional authority. Like the power to declare war, the power
to denounce treaties would not as such necessarily confer the power to repeal treaty
provisions as domestic law without actual denunciation.
On the other hand the existence of the power in Congress to declare war, and
the power to denounce treaties and perform some other "international acts," if Congress has it (e.g., Congress declared both wars with Germany at an end, the first
after the Senate refused consent to a treaty, S.J. Res. 16, July 2, 1921, ch. 40, 42
Stat. 105; KLJ. Res. 289, Oct. 19, 1951, ch. 519, 65 Stat. 451) suggest a major role in
foreign affairs for Congress which lends support to the view that the Constitution
gave Congress a broad legislative foreign affairs power as well.
61. See, e.g., comments of both sides in the Bricker debates, Hearings (1953),
supra note 4, at 77, 103, 835, 924-25. It would have been a telling argument for the
Bricker Amendment if Congress could not repeal, say, a genocide convention because
Congress did not have authority to enact one or otherwise to deal with that subject.
No one on either side, apparently, seized on the hint to this effect offered by Mr.
Justice Fields and Mr. Justice Curtis, .mpranote 59.
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
931
such laws by ratifying and proclaiming a treaty; it may make such
laws also through exercise of legislative power by Congress, in most
cases dearly, perhaps-we have suggested less confidently-in all cases.
These powers are far-reaching, but there exist limitations upon
these powers, and safeguards against their abuse. Both the treaty
power and the powers of Congress are, of course, subject to the limitations of the Bill of Rights and of other constitutional provisions governThere are some limits also implicit in the very
ing all federal action.'
requirement that the matters dealt with be of "international concern,"
a limitation that is not without significance even today. While the fact
that nations have concluded a treaty -is itself the strongest evidence
that it deals with a matter of international concern, legislation grounded
in the foreign affairs power will have to reveal plausible links to the
international interests of the United States. It should not be assumed
that Congress or the treaty makers will be irresponsible. And both
act of Congress and treaty are subject to the safeguards of judicial
scrutiny.'
Although the courts now only infrequently say no to the
political branches, it will be the courts who ultimately decide whether
treaty or statute may reasonably be deemed to be pregnant with "international concern," with effect on -the foreign relations of the United
States. In regard to treaties there are also the practical limitations
inherent in the fact that, usually, another party or parties must be willing
to undertake reciprocal or respective commitments. There are also
safeguards, in the discretion and wisdom of elected representatives of
variegated, counterbalancing political opinions, who-on numerous
occasions-refrained or refused to negotiate treaties on many matters;
who refused to sign agreements which had been negotiated; who refused-in the Senate-to consent to agreements signed; who refused
to ratify agreements which had been signed and to which the Senate
had consented. There is the different safeguard in that Congress can
"repeal," for domestic purposes, earlier treaty provisions. And, whether
as to treaty or statute, is there nothing left of the ultimate safeguard-an electorate exercising final authority over elected representatives ?
62. See notes 9, 12 supra. The first amendment, too, is a limitation on the treaty
power, although its terms apply only to Congress.
See ARms CONTROL 37, 179.
There are apparently other limitations on the treaty power in the guarantees of
the Constitution in favor of the States, e.g., the republican form of government, the
integrity of state territory, perhaps of the state militia. See ARiS CONTROL 34-36,
60-61, 172 n.15, 177 n.30.
63. It is generally accepted that the courts will scrutinize the validity of a treaty
as they do an act of Congress. For the possibility that courts might consider the
validity of a treaty a "political question", see ARms CONTROL 171-72, 173. While
foreign affairs is peculiarly an area into which the courts are reluctant to enter (cf.
JA'rr_ JuDiciAL AsPEcrs OF FOREIGN RELATIONS ch. I, (1933)), courts would hardly
refuse to examine a claim that a statute putatively related to foreign affairs has in
fact no such relevance.
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These limitations and safeguards may not be sufficient to allay
fear of the federal powers we have examined. "We fear to grant power
and are unwilling to recognize it when it exists." 04 Hypothetical discussion of constitutional issues involves dangers, not least of which is
the danger resulting from the fact that it is difficult to hypothesize
persuasively the circumstances in which Congress or the treaty makers
would exercise these powers we claim for them. Without the limiting,
framing context of an actual treaty or statute in fact ratified or enacted,
the powers asserted loom larger, their sweep more overwhelming and
frightening. For, it may well be asked, with the interdependence of
all nations increasingly obvious; with virtually any act or occurrence
in the United States having some impact or influence in some foreign
land; with virtually every act or occurrence in the United States
scrutinized by friends and would-be friends, by enemies and might-be
enemies; with the United Nations a "town meeting of the world" from
which no subject is barred; is there any act or event within the national
boundaries which cannot be deemed of "international concern," which
does not relate to or at least affect the foreign affairs of the United
States? Is everything then to be within both the treaty power and the
foreign affairs power of Congress? And what of the federal system?
If any matter which may somehow affect our standing, our relations,
with one or all other nations, is subject to federal regulation, what of the
States, the vitality that derives from local variations, the importance of
allowing different areas to solve problems in their different ways?
Assuming even that the Constitution indeed tolerates such sweeping
congressional authority, has the world grown so small that we can
no longer afford our brand of federalism? Is substantial autonomy for
the States too great a luxury in an age of atoms, missiles and cold war?
I believe not. Dangers to American federalism cannot be discounted, and admittedly external affairs, in particular, create strong
pressures for national rather than local action. But the federal system
has withstood other, greater pressures and dangers. The narrowing
continent of the United States, the complexity, interdependence and
trans-state character of commerce, were recognized by the Supreme
Court more than twenty years ago. The interstate commerce power
has, as the Court has since read it, few and far limits. But the far
reaches of the commerce power have not destroyed the States. Moreover, we have lived for almost two decades in war and emergency of
varying degrees. The war powers reach deep into local matters. In
single, selected areas-the control of atomic energy, for a major in64. Holmes, J., dissenting in Tyson & Brother v. Banton, 273 U.S. 418, 445 (1927).
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
933
stance-the power of Congress has been exercised in time of non-war
with hardly a nod to the States. But the war power of Congress has
not destroyed the States. If the continued application of these extended
powers does not destroy the resiliency or distort the shape of the
federal system, neither, I venture to guess, will the acceptance of a
congressional power to legislate on matters of "international concern"
-a power which in its far reaches may never be invoked. I do not
know whether Lord Acton's aphorism referred only to power exercised,
or even to power merely possessed. In any event, the possession of
this additional power by Congress need not spell or accelerate the
absolute corruption of federalism. In fact, of course, the federal
government has had the identical power from the beginning; the treaty
power has not rendered the States obsolete. To recognize that this
legislative power always inherent in the 'treaty power may also be
exercised independently by Congress should not evoke new federal
preemptions, new and radical intrusions into local activities and
responsibilities.
Perhaps what we have said will be deemed tantamount to an
assertion that there are already virtually no limitations on federal
power, so that yet another broad federal power can do no further harm.
Others have already suggested that the commerce and war powers as
now interpreted have given Congress authority to adopt any legislation whatever, and have eliminated, practically, the once basic doctrine
that the Constitution established a federal government of enumerated
powers. On that view, propounding an additional source of congressional power is supererogatory, academic play. The charge has some
point but is, I believe, exaggerated. How much truth and how much
exaggeration are involved may only be authoritatively determined at
some later day-if Congress attempts to exercise the powers we have
discussed and the courts proceed to scrutinize them. But even before
then, to recall and underline the foreign affairs power is not without
purpose. The complicated facts of national and international life have
also complicated the powers of Congress themselves. Few situations
requiring regulation fall within one area only of congressional interest
and authority. Analysis of congressional power may, then, tend to deal
in sums of congressional powers. In the sum, the foreign affairs
power-whether it reaches far or falls short of what we have suggested-looms as a new and important source of power. Congress
may-it must-take account of 'this effect of its actions, and its
failures to act, on the foreign relations and interests of the United States.
Having-forbid it -no desire to stir the ashes of controversy, it
yet seems inevitable to relate what has been said to the Bricker issues.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
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The key provision of the Bricker amendments, containing the celebrated
"which" clause, would have provided that "A treaty shall become
effective as internal law in the United States only through legislation
which would be valid in the absence of treaty." 15 Adopting Holmes'
assumption that there were matters which could be dealt with by
treaty that were beyond the powers of Congress alone, the provision
would have cut the treaty power down to the size of the relevant
powers of Congress; it would have prevented treaties on those matters
of "international concern" with which Congress could not deal. But as
the sweep of the powers of Congress approaches the scope of the treaty
power, the significance of the "which" clause approaches zero. If the
foreign affairs power of Congress goes as far as has been argued, if it
too reaches all matters that affect the foreign relations of the United
States, all matters of "international concern," the assumptions of the
amendment and its proposed remedy must fall. The powers of
Congress reach as far as does the treaty power. That relation to the
national concern in regard to its foreign affairs which makes a provision
a proper subject for a treaty, puts-or finds-it also in the federal
domain for possible legislation by Congress. Any matter about which
United States law is to be made which is properly a subject for international agreement, is, ipso facto, also a proper subject for legislation
under the implied foreign relations power of Congress. That a treaty
is concluded virtually proves that it deals with a matter of international
concern; under the foreign affairs power, then, Congress could have
enacted such legislation even in the absence of -the treaty. And the
"which" clause is then strictly useless, tautological, meaningless. Of
course, if it were enacted, a future court might feel impelled to give it
meaning. A court might even decide that the assumptions about the
limitations on the power of Congress which the clause reflected, even
if erroneous, had been enacted with the amendment. Still, if some
future Senator Bricker would limit the effective subject matter of
treaties he had better find another way of describing the limitation.0
For, however the scope of treaties be limited, Congress would still
65. S.J. Res. 43, 82d Cong., 1st Sess. § 2 (1953), as reported by the Judiciary Committee. Another version sought the same ends in different words, S.J. Res. 1, 84th
Cong., 1st Sess. § 2 *(1955).
66. Perhaps for the present at least the efforts will cease. Those who made the
last effort may find, if not satisfaction, consolation in what the proposed amendments
have already wrought. For the executive branch has, during several years, refrained
from proposing to the Senate for its consent any treaty of the kind which the
Brickerites most fear. It has not pressed for consent to the Genocide Convention
which has been before the Senate since 1949. It has fought in the United Nations
for the abandonment of draft covenants on human rights. It withdrew from the
Senate for "further study and consideration" several ILO Conventions long pending
for the Senate's consent. Even as to traditional treaties of friendship, commerce
and navigation, it has been careful, generally, not to include provisions which might
1959]
THE LAW OF THE LAND AND FOREIGN RELATIONS
935
retain its far-reaching powers, including the power to deal by legislation
with the same matters which affect United States foreign relations.
Congress could authorize or approve an international agreement by
the President.0 7 Or it could adopt relevant legislation even without an
international agreement. Efforts to "reserve" to the States some
matters of international concern, however ingeniously carved out and
defined, would have to amend the Constitution to take power from
Congress as well as from the treaty makers.
This may show the issues in a different light. Members of Congress may be more tender for their own powers than were many for
those of the President-and-Senate. Political and academic leaders who
have faith in the present constitutional pattern and strive to preserve it
may not feel constrained to argue away congressional power in the
exigency of controversy. More important, the worried citizen who
may have seen an anomalous and oversized treaty power towering above
other federal powers will perhaps see the matter otherwise if the treaty
power and the powers of Congress appear equally as correlative federal
powers to deal with matters of concern to the nation in its relation to
other nations. If the issue is not the unusual treaty power, but the
powers of the federal government looming-admittedly-frighteningly
large under the foreign relations power, the war power, the commerce
power and the taxing power, one may recall that "it is excellent to have
a giant's strength"; what is tyrannous, the poet said, is to use it like
a giant. Dangers must be met by efforts directed toward assuring the
wise exercise of those powers, by seeing that the liberties of the
citizen are preserved and enhanced, that legitimate local interests and
considerations are given due regard. They can hardly be dealt with
meaningfully by denying those powers to the federal government.
Constitutional amendments designed to curb the powers of the national
government, not in the proved interest of the liberty of the citizen but
appear too "local" to some in the Bricker camp. Provisions which are clearly
constitutionally proper subject matter for treaties have been rejected by the Senate
and abandoned for the future by the Executive because they involved matters as to
which the States were deemed to have a special interest-e.g., reciprocal provisions
allowing nationals of the two parties to practice their professions in the territory
of the other. See Aaus CONTROL 201. And while in international negotiations,
United States representatives no longer deny that the United States has power to
bind the States, they have sought the insertion of "federal-state" clauses which would
relieve the United States of the obligation to enforce some treaty provisions without
the consent of the States. Chafee, Federal and State Powers under the UN Covenant on Human Rights, 1951 Wis. L. REv. 389, 623. For a discussion of these clauses,
see Liang, Notes on Legal Questions Conceming The United Nations, 45 Am. J.
INT'L L. 108, 121 (1951) ; Sorensen, Federal States and the International Protection
of Human Rights, 46 Am. J.INT'L L. 195 (1952). Of course, whatever may be
practiced at one time by one Administration, it is something else to preach it, to ordain
it into binding constitutional principle.
67. See note 51 supra and accompanyng text.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
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in order to give of that power to the States, would be an incredible
anachronism. Not since the tenth and eleventh amendments-the latter
in 1798-has the Constitution been amended to limit federal power in
favor of the States. And even at the height of state power, no role was
sought or suggested for the States in regard to United States international affairs. The States have never existed where relations with
other nations were involved. There have been few "States righters"
8
in foreign affairs
Many will have deep sympathy for those who dream of old days
thought good, or better; who yearn for decentralization even in foreign
affairs and matters of international concern, for limitations on federal
power, for increase in the importance of the States; who thrill to a
wild, poignant, romantic wish to turn back all the clocks, to unlearn
the learnings, until the atom is unsplit, weapons unforged, oceans unnarrowed, the Civil War unfought. The wish remains idle, and the
effort to diminish power in this area for fear that it may not be used
wisely is quixotic, if not suicidal. It is not the moment to attempt it
when all ability, flexibility, wisdom are needed for cooperation for
survival by a frightened race, on a diminishing earth, reaching for
the moon.
68. Not even Chief Justice Taney, or Senator Calhoun.
168 n.3.
See Alms CONTROL